1976 PLP 577 (PLC)

This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. V, Karachi, dated March 10, 1973, whereby the learned Labour Court dismissed the application of the appellant as incom petent and not maintainable under the provisions of the Industrial Relations Ordinance, 1.969 (hereinafter called the Ordinance). The appellant, India Flour Mills Workers' Union, made an application under section 32 (1-A) of the Ordinance against India Flour Mills Limited (hereinafter called the respondent). The respondent's case was that the Mills have completely shut down from 26th June, 1968; and that the services of the workmen employed by the Mills were also terminated under an agreement before the Martial Law Authorities dated 15th July, 1969. The workmen were also to be paid their dues under the said agreement. The case of the respondent-Mills further was that after the closure of the business, they rented out the machinery to Messrs Noor Bhoy Halai & Sons.

2. The learned Labour Court came to the conclusion that none of the persons in the Trade Union of the appellant is in the employment of the respondent-Establishment, as the same was closed down in 1969. The Union, therefore, became functus officio and could not take up the cause of the workmen, who ere not in the employment of the respondent-Mills. 3, I have heard Mr. A. Majeed, the learned Representative for the appellant. Mr. Majeed contended that the so-called agreement dated 13th July 1969, cannot be, said to be a settlement within the meaning of the definition of the term "settlement" given in the Ordinance as no copy of the agreement made was sent to any of the authorities mentioned in the definition of "settle ment". It is true that the agreement dated 15th July 1969 cannot be said to be a settlement for the purposes of the provisions of the Ordinance. The fact, however, remains that an agreement was arrived at before the Martial Law Authorities, which was signed by Lt.-Col, A. Ghani, Sub-Administrator, Matrial Law, Mr. Usman, who claims to be the General Secretary of the Union and Mr. Wahid F. Tawawalia, on behalf of the India Flour Mills 1936 Limited. Mr. Usman does not state that the agreement was arrived at under any duress. Mr. Usman stated in his cross-examination as under:- "I had signed an affidavit before Martial Law Authorities. I had signed Annexure'B' on behalf of 73 persons as their representative including myselt. We had got wages from 24th June 1966 to 24th July 1968, as per Paragraph 3 of Annexure 'B.

4. The relevant portion of Annexure 'B' reads as under:- "In pursuance of the Agreement arrived at through Martial Law Authority (Lt -Col. Abdul Ghani), we have to notify you as under:- (1) -That, your services stand terminated with effect from 21st May, 1969 (2) That, you shall get one month's wages in lieu of notice (3) That as decided by the Industrial Appellate Tribunal of West Pakistan at Karachi, you shall get full wages for the period the Mills remained suspended under orders of the Deputy Director of Food, Karachi, from 24th June 1968 to 3rd July 1968.

5. It is clear from the admission made by Mr. Usman in his cross -examination that the agreement was acted upon and that the workers also got payment as provided in paragraph 3 of the terms of agreement. Mr. Usman also admitted in his cross-examination that the Mills was closed in June 1968. -Mr. Usman further admitted that after the notice, which I have reproduced above, he came to know about the termination of their services. He stated that "after that letter of termination, I was not re-instated." It has been established from the statement of the General Secretary himself that the services of the workers of the respondent-Mills stood terminated from 13th July 1969, though the Mill was closed in June 1968.

6. The burden lay upon the workers of the appellant-Union to prove that they were re-employed by the respondent-Mill after July 1969. In the absence of any evidence, the learned Labour Court rightly dismissed the application as not maintainable. I would maintain the order of the learned Labour Court and dismiss the appeal.